Joined Cases T-3/00 and T-337/04
Athanasios Pitsiorlas
v
Council of the European Union and European Central Bank (ECB)
(Access to documents – Basle/Nyborg Agreement – Action for annulment – Challengeable acts – Statement of reasons – Plea of illegality – Decision 93/731/EC – Rules of Procedure of the European Central Bank – Action for damages – Non-contractual liability of the Community for the unlawful conduct of its organs – Damage – Causal link)
Summary of the Judgment
1. Actions for annulment – Actionable measures – Meaning – Measures producing binding legal effects
(Art. 230 EC)
2. Council – Right of public access to Council documents – Decision 93/731
(Council Decision 93/731)
3. Community law – Principles – Fundamental rights – Right of public access to documents
(Arts 110 EC and 255 EC)
4. Acts of the institutions – Statement of reasons – Obligation – Scope
(Art. 253 EC)
5. Actions for damages – Independent of actions for annulment
1. The fact that a letter has been sent by a Community institution to a person in response to a prior request by that person is not sufficient for that letter to be regarded as a decision within the meaning of Article 230 EC, thereby opening the way for an annulment action. Only a measure which produces binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position is an act or decision which may form the subject-matter of an action for annulment under Article 230 EC.
Where, however, in response to a request for access to documents based on Article 23.3 of the Rules of Procedure of the European Central Bank, the decision of the Governing Council refusing that request was formally embodied, in the applicant’s regard, only in the document by which it was notified, the applicant's pleadings for annulment of the notification letter must be interpreted as seeking the annulment of that decision, as brought to his knowledge by that letter.
(see paras 58, 63, 65)
2. It is apparent from the wording of Article 1 of Decision 93/731 on the right of public access to Council documents that the Council may accede to a request for access only if the documents envisaged in that request exist, and only if they are held by the Council.
In accordance with the presumption of legality attaching to Community acts, where the institution concerned asserts that a particular document to which access has been sought does not exist, there is a presumption that indeed the document does not exist. That, however, is a simple presumption that the applicant may rebut in any way by relevant and consistent evidence.
(see paras 131, 140)
3. Fundamental rights cannot be understood as unfettered prerogatives, and it is legitimate that such rights should, if necessary, be subject to certain limits justified by the overall objectives pursued by the Community, on condition that the substance of those rights is left untouched.
Concerning the right of access to documents held by the Community public authorities, including the European Central Bank (ECB), even if that right may be regarded as a fundamental right protected by the Community legal order as a general principle of law, reasons related to the protection of the public interest or a private interest may legitimately restrict that right.
Restrictions on access to ECB docments under, for example, Article 23.3 of its Rules of Procedure, which provides, in particular, for a 30-year period of confidentiality for documents held in the archives of the Committee of Governors, are related to the tasks conferred on the ECB by the Treaty, the authors of which clearly intended to ensure that the ECB is in a position to carry out those tasks in an independent manner. That interpretation is confirmed by a combined reading of Articles 110 EC and 255 EC, the effect of which is to exclude the ECB from the scope of the latter provision, thereby evidencing that, as regards access to documents, the ECB benefits from special treatment as compared with the European Parliament, the Council or the Commission.
Thus protection of the public interest related to monetary policy in the Community constitutes a legitimate reason for restricting the right of access to documents held by the Community public authorities, viewed as a fundamental right.
(see paras 221-223, 228-229, 231-232)
4. The statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question.
The institution to which the application for access to documents is made must make clear in the grounds stated for its decision that it has carried out an assessment of the documents to which access is sought. A decision does not meet those requirements, and must therefore be annulled, if it does not base its position on any specific need or reason to protect those documents or, a fortiori, provide any explanation, however brief, justifying its refusal to disclose the content of the documents, so that it is possible to understand, and to verify, the need for their protection. The mere fact that the nature of the documents sought was specified cannot be assimilated to an assessment of the information contained in those documents.
Moreover, the reasons for a decision have to appear in the actual body of the decision and, if that decision contains a statement of reasons of some kind, that reasoning cannot be developed and explained for the first time ex post facto before the Community Court, save in exceptional circumstances which are not present in this case given that there is no urgency and in the light of the unique character of the act which had to be adopted by the ECB.
(see paras 261, 263, 267, 269, 278-279)
5. The action to establish liability is an independent form of action, with a particular purpose to fulfil within the system of legal remedies and subject to conditions of use dictated by its specific purpose. Whereas actions for annulment and for failure to act seek a declaration that a legally binding measure is unlawful or that such a measure has not been taken, an action to establish liability seeks compensation for damage resulting from a measure or from unlawful conduct, attributable to a Community institution or body.
Where an applicant follows an annulment action with an action for damages, from which it is apparent that the allegedly unlawful conduct of the defendant institutions consists precisely in the adoption of the decisions of which the applicant seeks annulment, and, in the context of that action for damages and in order to show the unlawful conduct of the defendants, he develops arguments partially identical to those formulated for the purpose of obtaining annulment of the acts at issue, the principle of independent legal remedies precludes a collective assessment of all the pleas of illegality raised in the context of the action for annulment and the action for damages, in view of the different consequences flowing from decisions upholding such actions. The success of an action for annulment results in the disappearance of the act impugned from the Community legal order, whereas the success of an action for damages enables the damage caused thereby to be made good, but does not result in the automatic extinction of the act impugned.
The joinder of cases for the purposes of the oral procedure and the judgment is not capable of rebutting that conclusion, given that the order for joinder does not affect the independence and autonomy of the cases which it covers, since they may always subsequently be disjoined.
(see paras 280-281, 283-285)